Sargon v Richardson
[2011] WASC 228
•1 SEPTEMBER 2011
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: SARGON -v- RICHARDSON [2011] WASC 228
CORAM: SIMMONDS J
HEARD: 11 JULY 2011
DELIVERED : 1 SEPTEMBER 2011
FILE NO/S: SJA 1013 of 2011
BETWEEN: ANDREW GAVIN SARGON
Appellant
AND
BEN RICHARDSON
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE P M HOGAN
File No :PE 25090 of 2009, PE 25091 of 2009
Catchwords:
Criminal law and procedure - Application for leave to appeal and appeal against convictions for breaches of violence restraining orders - Prosecution not calling material witness at trial - Whether miscarriage of justice
Legislation:
Criminal Appeals Act 2004 (WA), s 8
Criminal Code (WA), s 245
Restraining Orders Act 1997 (WA), s 61, s 62
Result:
Leave to appeal granted
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: Mr A K Sharpe
Solicitors:
Appellant: In person
Respondent: State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Adel Muhammed El Dabbah v Attorney‑General (Palestine) [1944] AC 156
Brandi v Mingot (1976) 12 ALR 551
De la Espriella‑Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291
Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285
Hodder v Police Department of Western Australia [2011] WASC 142
Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23
Jones v Dunkel (1959) 101 CLR 298
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
O'Donnell v Reichard [1975] VR 916
Police v Sherlock [2009] SASC 64; (2009) 103 SASR 147
R v Apostilides [1984] HCA 38; (1984) 154 CLR 563
R v Edwards [2009] HCA 20; (2009) 255 ALR 399
R v Harris [1927] 2 KB 587
R v Kyriacou [2009] SASC 66; (2009) 103 SASR 243
R v Lawson [1960] VR 37
R v Lucas [1973] VR 693
R v Oliva [1965] 1 WLR 1028
R v Seneviratne [1936] 3 All ER 36
Richardson v The Queen (1974) 131 CLR 116
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378
Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657
Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509
Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279
SIMMONDS J:
Introduction
This is an application for leave to appeal and appeal against conviction on two counts of breaching violence restraining orders contrary to Restraining Orders Act 1997 (WA) s 61(1) (the Act). The appeal rests on the non‑appearance of an expected witness for the prosecution. The prosecution had been unable to locate the witness. The witness would have been the only independent witness to the incident out of which the prosecution arose. The appellant had understood from police on the day of the incident that they would be relying heavily on the evidence of that witness.
I first provide the background to the appeal, before describing the proceedings in it and considering the issues raised by it, the relevant principles of law applicable to the appeal and their application. The final section of these reasons is my conclusion.
Background
The following account represents common ground between the parties to these proceedings.
On 13 April 2007 two interim violence restraining orders (the VROs) were made against the appellant, for the benefit of two members of the L family. With an exception not material in these proceedings, the VROs in each case prohibited the appellant from communicating or attempting to communicate with the protected person or approaching within 2 m of that person. Both orders were served on the appellant on 15 April 2007.
One of the VROs was made for the benefit of EL (the VRO for EL). She lived with her husband RL in a house on a property on a street in North Perth (the L property). Next door on the same street was the property (the S property) in the house on which the appellant and his wife KS lived.
The other of the VROs was made for the benefit of SL (the VRO for SL). SL was the adult son of EL and RL. SL did not live at the L property but visited it not infrequently.
On 13 April 2009 there was an incident (the incident) during which at various times the appellant, KS, SL, EL and RL were present while they were at or near the S property and the L property. The incident occurred while the VROs were in force, but had only two days left to run. Police were called to the incident. One of the persons from whom then or ultimately police took a statement was RC (the RC witness statement). RC lived at a house on a property on the same street. The RC witness statement indicated RC had witnessed, by hearing and observing aspects of it, at least parts of the incident. The RC witness statement was provided to the appellant prior to the trial on the charges arising out of the incident. Police informed the appellant that they planned to rely on evidence from RC for the purposes of any proceedings arising out of the incident. The appellant understood the evidence of RC would be of considerable importance in any such proceedings.
On 13 April 2009 the appellant was charged with two offences arising out of the incident as follows:
•Having been personally served with [the VRO for EL], breached that order by swearing at the protected person and threatening violence; and
•Having been personally served with [the VRO for SL], breached that order by swearing at the protected person and threatening violence.
It will be seen that the charges were for breaches of the communication prohibitions in the VROs.
On 21 January 2011 in the Magistrates Court, Perth, Magistrate Hogan presided at a trial on those charges. The appellant represented himself, as he did in his appeal. For the prosecution, EL, RL, SL and two police officers (the respondent and one other) gave evidence. Only the first three of these were witnesses to the incident. For the appellant, he and KS gave evidence. Both of them were witnesses to the incident.
RC did not give evidence at the trial, and I will return to the explanation given at the trial for his absence. After the appellant had closed his case, he sought to have RC's witness statement admitted into evidence. Magistrate Hogan ruled she would not do so, and I will consider her reasons for that ruling below.
At the end of the trial Magistrate Hogan reserved her decision.
On 3 February 2011 Magistrate Hogan distributed written reasons (Magistrate Hogan's Reasons) for finding that the appellant was guilty on both charges. So far as they are significant for my purposes, I set out in what follows her findings and their bases as they appear from Magistrate's Hogan's Reasons and the transcript of the trial. Magistrate Hogan's Reasons list her findings of fact at [19] ‑ [23]. I take each separately, describing for it what appear to me to be the bases for it.
The accused abused and swore at SL and RL as they performed tasks re certain vehicles on 13th April 2009 [19].
The bases for the finding [19] appear to have been the evidence of SL, RL and the appellant in the following respects.
The evidence of SL and RL included that they were outside the L property moving certain vehicles from a property on the opposite side of the street to the L property. Thereafter RL was working on a vehicle he and SL had so moved. During the time SL and RL were doing these things the appellant shouted abuse at them. EL's evidence included that she heard the appellant screaming, she went to the driveway of the L property and she saw RL and SL pushing a vehicle. The appellant's evidence included his admission that he swore and yelled abuse at SL.
The accused initiated the incident [20].
The bases for this finding appear to have been the evidence of SL, RL and EL, in the respects previously noted as well as the bases for the next two findings.
Neither SL nor EL entered the accused's property [21].
The bases for this finding appear to have been the evidence of EL, RL and SL that SL did not go into the front yard of the appellant's property, and the evidence of EL that she never at any material time moved from her driveway.
The accused abused and swore at EL when she came out after hearing the accused yelling [22].
The basis for this finding appears to have been the evidence of SL, RL and EL that when she stopped the appellant called her a name and swore at the same time.
The accused threw a cement flower pot which smashed on the footpath/crossover near the property line of the parties [23].
The bases for this finding appear to have been the evidence of EL, RL and SL that the appellant threw a flower pot as indicated.
On the same day, 3 February 2011, that Magistrate's Hogan's Reasons were distributed, and after hearing from the prosecution and after questioning the appellant, she sentenced him to a fine of $500 on each charge he faced, for a total of $1,000. She also ordered him to pay $60 in costs.
This appeal
The proceedings in this appeal were commenced by appeal notice on Form 20 seeking leave to appeal dated 14 February 2011. The appellant's endorsement of the Form 20 did not clearly indicate if he was seeking leave to appeal against his conviction, his sentence or both. At the hearing before me he confirmed that the appeal was only against his conviction, which also appeared from the nature of his ground of appeal.
The Appeal Notice (Form 20) sets out only one ground of appeal, as follows:
Independant [sic independent] police witness never appeared for 3 hearings.
At the hearing before me, the appellant sought to put in evidence from himself that, on 10 and 11 April 2009, SL had accosted him and the appellant had complained about that to the police. The respondent objected to the admission of this evidence, and to leave being given to the appellant to add any new ground of appeal to which the evidence might relate. For reasons I gave orally at the hearing, and which are an annexure to these reasons, I refused to give such leave or to admit such evidence.
By orders dated 27 May 2011 Hall J of this court made orders on the appeal, including that the application for leave to appeal be heard at the same time as the appeal. For reasons which will become apparent, I consider leave to appeal should be given, applying the standard in Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56] (Steytler P, Wheeler & Roberts‑Smith JJA). However, as I explained to the appellant at the hearing, any grant of leave only indicates that, in the words of Samuels [56] 'it would not be irrational, fanciful or absurd to envisage [the appeal] succeeding … in effect, that it has a real prospect of success'. A grant of leave to appeal does not of itself indicate that an appeal will succeed, or even that it is more likely than not to succeed.
The appellant's case on the appeal
At the hearing before me the appellant handed up written submissions. They did not in terms set out a legal argument. At the hearing the appellant elaborated on and added to those submissions. I gathered further assistance in understanding the appellant's case on the appeal from the transcript of the trial. I take the following from those submissions, that elaboration and those additions, considered with the trial transcript.
The appellant's case at trial rested on the evidence he gave, supported in part by the evidence of KS. That case was that SL had started the incident by saying something abusive to the appellant while the latter was in the front yard of the appellant's property after which SL had entered the front yard by kicking open the gate and with a spanner in his hands threatened to attack and kill the appellant. The appellant, concerned at the threats, screamed abuse and threats at SL, finding a cement pot, raising it over his head, taking steps towards SL and warning him that, if he came further, the appellant would smash the pot on his head. However, the appellant did not throw the pot. SL retraced his steps to the gate and stopped there, before EL took his hand and pulled him out of the front yard of the appellant's property. At the point when SL was pulled out of the front yard, KS opened the front door to the house on the appellant's property, ran out and around him and asked SL, EL and RL to get away from the front yard. RL was present at the scene throughout and at the point when KS made her request he had a plank while he was on the other side of the gate. Magistrate Hogan's findings I have quoted entailed the rejection of the evidence the appellant and KS gave on which the appellant's case rested, as it appears to me Magistrate Hogan's Reasons indicate as I will explain.
The appellant's case as to both SL and EL appears to have rested on the defence to the offence in the Act s 61(1) that is in s 62(1)(d), which reads as follows:
62.Defence
(1)It is a defence to a charge under section 61 for the person who is bound by the order to satisfy the court that in carrying out the act that constituted the offence, the person was -
…
(d)acting as the result of such an emergency that an ordinary person in similar circumstances would have acted in the same or a similar way.
Although Magistrate Hogan did not approach the case in terms of whether s 62(1)(d) was made out or negatived, it seems to me that her findings of fact were inconsistent with the possibility of that defence being made out or not negatived. At the same time, it seems to me to be at the least strongly arguable that, if Magistrate Hogan had not found she should prefer the evidence of SL, EL and RL over the evidence of the appellant and KS as she had, she would not have convicted the appellant.
I should note that Magistrate Hogan's Reasons [24] indicate that she did consider what she described as the accused's evidence 'that he was provoked by SL'. She correctly observed that provocation was not available as a defence in this case (see Criminal Code (WA) s 245). However, while she did not consider the accused's evidence as going to the defence of emergency, it appears to me her findings I have described involved the rejection of that evidence, as she appears to confirm in [24], and as I have indicated.
The appellant's case in this appeal was that if RC had been a witness at the trial, he would have given evidence that would have caused Magistrate Hogan not to have found she should prefer the evidence of SL, EL and RL over that of the appellant and KS. That would have been because the appellant would have drawn evidence from cross‑examination of RC to show that SL, EL and RL had not given reliable evidence. Although the matter is not altogether clear from the appellant's written submissions and his oral submissions before me, it seems he was principally contending that that evidence would have been that RC had seen SL in the appellant's front yard during at least part of the incident. RC would have given that evidence when the appellant had shown RC he could not have observed the incident without coming down the street, which the appellant says RC had done. When RC had come down the street, the appellant says he had asked him to remove the Ls.
The appellant's case in this appeal was that if he had been able to cross‑examine RC he would have been able to draw that evidence from him by two means. On the not unreasonable assumption RC would have given evidence in accordance with RC's witness statement, the appellant would have confronted RC with inconsistencies between evidence he had given in a proceeding in May 2010, in which EL had sought to obtain a further VRO and in which RC had given evidence as to the incident, and the content of RC's witness statement. I will consider those inconsistencies below. The appellant would have also confronted RC with a photograph or photographs of the street that showed, the appellant said, that RC could not have seen the appellant's property from the property on the street in which RC was then living. This would have caused RC to admit he had come down to the appellant's property, as the appellant said he did, and further to admit, as I understood the appellant, he had seen SL in the front yard when the appellant had asked RC to remove the Ls so the appellant could go to work that day, as the appellant said he had asked RC to do.
I also understood the appellant to be contending that his cross‑examination would have elicited from RC that SL, EL and RL had 'prefabricated' evidence with the help of RC. It was not made clear to me how the appellant expected to obtain such evidence, other than as a result of the cross-examination using the two means described.
I turn to considering what principle or principles in law might be seen on a case of that kind to warrant setting aside the appellant's conviction. In doing so, I did not have, and, as he was a self‑represented litigant without an evident legal background, I could not have expected, assistance in respect of such principles from the appellant. Counsel for the respondent for his part assisted the court in drawing to its attention potentially relevant principles and authorities.
Relevant principles
It seems to me that if the unavailability at trial of RC was such as to render the trial a miscarriage of justice, the conviction could not stand. See Criminal Appeals Act 2004 (WA) s 8(1)(b); and R v Apostilides [1984] HCA 38; (1984) 154 CLR 563, 575 (Gibbs CJ, Mason, Murphy, Wilson & Dawson JJ).
Although I had initially considered otherwise, I concluded that the appellant was not contending that without the evidence of RC any conviction would be unsafe or unsatisfactory as that is understood in relation to appeals from decisions of magistrates to a judge of the General Division of the Court. Showing a conviction was unsafe or unsatisfactory in such an appeal would require it to be shown that on the whole of the evidence in fact before the magistrate, it was not open to that magistrate to be satisfied beyond a reasonable doubt that an offender was guilty. In determining whether or not there had been such a showing, the appeal court must give consideration to the fact the magistrate had had the benefit of seeing and hearing the witnesses. That of course was a matter of significance in this case, which turned on credibility determinations by Magistrate Hogan. See on this understanding of an unsafe or unsatisfactory verdict M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 493 (Mason CJ, Deane, Dawson & Toohey JJ), applied to appeals from magistrates to a judge of the General Division in Hodder v Police Department of Western Australia [2011] WASC 142 [36] ‑ [37] (Commissioner Sleight). Given the bases for the findings in Magistrate Hogan's Reasons I have described involving her assessment of the credibility of the evidence before her, it is not apparent to me that there was a real prospect of establishing that the appellant's convictions were unsafe or unsatisfactory.
However, I leave aside for this purpose the possibility that it would have been open to Magistrate Hogan to have drawn the inference, from the failure of the prosecution to call RC, that he would not have helped the prosecution's case. For reasons I give below, I do not consider this possibility arises in this case.
As I understood the appellant's contentions, they were rather that without RC as a witness he had been deprived of the opportunity of establishing that SL's, EL's and RL's evidence should not be preferred to that of himself and KS. On those contentions, it seems to me that the test in this case for whether or not a miscarriage of justice has been shown is that which would have been applied had the appellant, after the unavailability of RC as a witness had been confirmed (as it was), asked at trial for the proceedings to be stayed. See on granting a stay in proceedings where material evidence is unavailable Police v Sherlock [2009] SASC 64; (2009) 103 SASR 147, where other authorities are discussed.
However, before I reach that test, I need to consider other bases on which the absence of material evidence in a criminal trial might assume significance. Those bases appear to be two.
One is what has been called the obligation or duty of the prosecution to call all material witnesses, or at least all available witnesses, unless there is some good reason not do so. See Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285 [6], [11] (Gaudron & Hayne JJ); R v Kyriacou [2009] SASC 66; (2009) 103 SASR 243 [63] (Sulan J), [11] ‑ [17] (Gray J), [86] (Kourakis J).
The other basis is the inference it is open to the finder of fact in a trial to draw that has been called the Jones v Dunkel inference, for Jones v Dunkel (1959) 101 CLR 298. That inference is described in Kyriacou [7], referring to Brandi v Mingot (1976) 12 ALR 551, 559 (Gibbs ACJ, Stephen, Mason & Aickin JJ) and O'Donnell v Reichard [1975] VR 916, 929 (Newton & Norris JJ), as follows:
In Brandi v Mingot Gibbs ACJ, Stephen, Mason and Aickin JJ referred to the following observations from O'Donnell v Reichard as correctly characterising this inference:
'… where a party without explanation fails to call as a witness a person whom he might reasonably be expected to call, if that person's evidence would be favourable to him, then, although the jury may not treat as evidence what they may as a matter of speculation think that person would have said if he had been called as a witness, nevertheless it is open to the jury to infer that person's evidence would not have helped that party's case.' (footnotes deleted)
The first basis is related to the second as follows.
In Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657, 674 ‑ 675 (Dawson J), referring to Richardson v The Queen (1974) 131 CLR 116; R v Harris [1927] 2 KB 587, 590; Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279, 294; R v Seneviratne [1936] 3 All ER 36, 49; Adel Muhammed El Dabbah v Attorney‑General (Palestine) [1944] AC 156, 167 ‑ 169; R v Oliva [1965] 1 WLR 1028; R v Lawson [1960] VR 37; and R v Lucas [1973] VR 693, 705 ‑ 708, his Honour said this:
In Richardson v The Queen this Court pointed out that although the choice made by a Crown Prosecutor of the witnesses to be called in support of the Crown case may be said to involve the exercise of a discretion, that means no more than that he is called upon to make a personal judgment bearing in mind the responsibilities of his office. It is not a discretion which he can be compelled to exercise in a particular manner, although his failure to call witnesses who ought to be called may constitute misconduct and may result in a miscarriage of justice which will constitute a ground for setting aside a conviction and granting a new trial. It is in this context that it is possible to speak of a Crown Prosecutor being bound, or under a duty, to call all available material witnesses. It is not a duty owed by the prosecutor to the accused which is imposed by some rule of law; rather it forms part of a description of the functions of a Crown Prosecutor.
Nevertheless, there is good guidance in the cases for what constitutes a material witness. All available witnesses should be called whose evidence is necessary to unfold the narrative and give a complete account of the events upon which the prosecution is based. In general, these witnesses will include the eye-witnesses of any events which go to prove the elements of the crime charged and will include witnesses notwithstanding that they give accounts inconsistent with the Crown case. However, a prosecutor is not bound to call a witness, even an eye-witness, whose evidence he judges to be unreliable, untrustworthy or otherwise incapable of belief. And if the number of witnesses available for the proof of some matter is such that in the circumstances it would be unnecessarily repetitious to call them all, then a selection may be made. All witnesses whose names are on the indictment, presentment or information should nevertheless be made available by the prosecution in order that they may be called by the defence and should, if practicable, be present at court. See R v Dora Harris; Ziems v Prothonotary of the Supreme Court of NSW; Seneviratne v The King; Adel Muhammed El Dabbah v Attorney‑General (Palestine); Reg v Oliva; Reg v Lawson; Reg v Lucas. (footnotes omitted)
This passage is referred to with apparent approval in Dyers [11] ‑ [12].
In my view, in a case like this one, the only form of miscarriage that might be seen to flow from the prosecution's failure in breach of its obligation to do so to call a material witness would be that it made it open for the decision‑maker to draw an inference of the Jones v Dunkel kind. See Dyers [17], referring to Apostilides (575), as follows:
As was held in R v Apostilides, it is for the prosecution to decide what evidence it will adduce at trial. The trial judge may, but is not obliged to, question the prosecution in order to discover its reasons for declining to call a particular person, but the trial judge is not called upon to adjudicate the sufficiency of the reasons that the prosecution offers. Only if the trial judge has made such an inquiry and has been given answers considered by the judge to be unsatisfactory, would it seem that there would be any sufficient basis for a judge to tell the jury that it would have been reasonable to expect that the prosecution would call an identified person. There would then be real questions about whether, and how, the jury should be given the information put before the judge and then a further question about what directions the jury should be given in deciding for itself whether the prosecution could reasonably have been expected to call the person. Only when those questions had been answered would further directions of the kind contemplated by Jones v Dunkel have been open and they are not questions which arise in the present matter. (footnotes omitted)
In this case, given the matter in RC's witness statement as I have indicated, and the fact if called he would have been the only witness to the incident apparently independent of the two camps in this case, it cannot be doubted that RC was a 'material' witness, and it would not have been 'unnecessarily repetitious' to have called him. See Whitehorn (674). Nor was it suggested to Magistrate Hogan or to me that the prosecution had judged RC's evidence as 'unreliable, untrustworthy or otherwise incapable of belief'. See Whitehorn (674).
When at the trial the prosecutor first indicated to Magistrate Hogan that RC would not be present, she indicated to the prosecutor he could ask the investigating officer (the respondent), when he was called to testify, about RC. In the examination in chief of the respondent, in response to a question from the prosecutor, echoed by Magistrate Hogan, as to where RC was, to which Magistrate Hogan added the question why he was not at the trial, the respondent said this (21 July 2011, ts 65):
Okay. Well I took a statement from [RC]. [RC] had moved address twice and he changed his mobile number twice and unfortunately between the last (indistinct) and this one I have not been able to trace him. He has finished his course of studying in WA and I don't know where he is just now. We tried to summons him but couldn't, I'm afraid.
Neither the prosecutor nor Magistrate Hogan returned to the matter. Magistrate Hogan did not state whether or not she found the respondent's testimony just quoted satisfactory.
She did later deal with RC's absence in her exchange with the appellant when, after the close of his case, in his closing submissions he asked to have RC's witness statement admitted into evidence, to which the prosecutor objected. Magistrate Hogan, correctly in my view, refused to admit RC's witness statement, as none of the conditions for its admission in Criminal Procedure Act 2004 (WA) sch 3 cl 7(1)(a) ‑ (e) were met. That provision reads as follows:
(1)A court dealing with a charge may admit into evidence a statement of a witness or a recording of a witness's evidence if the court is satisfied that the statement complies with clause 4 or the recording was made in accordance with clause 6 and -
(a)that the witness is dead;
(b)that the witness's medical or mental condition is such that the witness is unable to give evidence, or to give evidence satisfactorily, notwithstanding that the witness might recover at some future time;
(c)that the witness is out of the State and is not able to give evidence at the proceeding by means of a video link or an audio link, notwithstanding that the witness might return at some future time;
(d)that the witness is being kept out of the way by the accused; or
(e)that all the parties consent and that the interests of justice do not require the presence of the witness.
There was no reference to RC in any way in Magistrate Hogan's Reasons.
In my view it can be inferred from the trial transcript and Magistrate Hogan's Reasons that she was satisfied by the respondent's answers to her questions. It was evident to me that she was able to be so satisfied. In those circumstances no breach of the obligation or duty on the prosecution upon which a Jones v Dunkel inference would have been open was shown. This conclusion makes it unnecessary for me to consider whether or not, as the respondent put to me, that even had the inference been open, that would not have been sufficient on the evidence in this case to make the convictions unsafe.
I turn now to consider whether the failure to have RC available at the trial, for whatever reason, was such as to produce a miscarriage of justice by the application of the test I have identified. That test, it will be recalled, was whether, had the appellant, after the unavailability of RC been confirmed, asked at the trial for a stay of proceedings, his request would have been granted.
I take the test for the grant of a stay to be that stated in R v Edwards [2009] HCA 20; (2009) 255 ALR 399 [23] ‑ [24], referring to Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378, 392 (Mason CJ, Deane & Dawson JJ), as follows:
His Honour purported to state the test by reference to the decision of this court in Walton v Gardiner. A majority of the court approved each of the formulations of the test applied by members of the Court of Appeal; 'whether, in all the circumstances, the continuation of the proceedings would involve unacceptable injustice or unfairness', or whether the 'continuation of the proceedings would be 'so unfairly and unjustifiably oppressive' as to constitute an abuse of process'. Their Honours observed that it had been made plain by the Court of Appeal that the court would only be satisfied that continuation of the proceedings constituted an abuse in an exceptional or extreme case.
The respondents acknowledge that the primary judge misstated the test in asking whether the loss of primary data and the delay could constitute an unacceptable injustice or unfairness. However, they submit that a fair reading of the whole of his Honour's reasons discloses that the error was one of expression and not of principle. This submission must be rejected. Throughout the reasons it is apparent that his Honour is directing attention to the risk that the lost evidence may be productive of unfairness to the respondents. (original emphasis; footnotes omitted)
What is the result of the application of that test in this case?
Whether there was a miscarriage of justice
There have been a number of authorities concerning whether an order for a stay should be set aside in circumstances involving the unavailability of evidence in the form of surveillance recordings, or the like, of or relating to the events in question. The High Court described the position in Edwards, referring among other authorities to another such case, in the Full Court of the Supreme Court of South Australia, Sherlock.
Edwards involved an appeal in respect of a stay of a prosecution for the reckless operation of an aircraft. The issue was whether the prosecution had proved beyond a reasonable doubt that the accused had taken off at night with no runway illumination. There was evidence from witnesses that the runway was not illuminated when the aircraft was moving along the taxiway and taking off. Evidence in the form of an electronic record made at the airport and information recorded on board the aircraft itself which might have indicated that the runway lighting was on was unavailable.
The High Court in Edwards allowed the appeal, set aside the stay order and dismissed the application for a stay order. In the course of their joint judgment, the members of the Court (Hayne, Heydon, Crennan, Kiefel & Bell JJ), referring to Sherlock; Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23, 34 (Mason CJ), 47 (Brennan J); and Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509, 519 (Mason CJ, Dawson, Toohey & McHugh JJ), said this:
The respondents do not contend that the loss of objective evidence, such as electronically recorded data or the like, would ordinarily justify a stay of proceedings on indictment. In the course of argument the respondents conceded that the loss of film recorded by a closed-circuit television camera at the scene of an alleged offence would not afford a basis for a stay. They seek to distinguish their case on the basis that the loss here is of the independent record of the event giving rise to the charge. This is said to be productive of unfairness of the kind that informs the power to stay since the trial will necessarily involve an incomplete reconstruction of the event.
The distinction between an independent record forming a constituent part of an event and an independent record of an event is without substance. Trials involve the reconstruction of events and it happens on occasions that relevant material is not available; documents, recordings and other things may be lost or destroyed. Witnesses may die. The fact that the tribunal of fact is called upon to determine issues of fact upon less than all of the material which could relevantly bear upon the matter does not make the trial unfair [30] ‑ [31]. (footnotes omitted)
Sherlock involved a prosecution for shoplifting from a department store. The issue at trial in large part was whether the accused had removed from a number of items the adhesive label which would have activated an alarm if the item with the label were taken through a security gate without the label being de-activated. There was a witness, a Mr Bryant, who testified he saw the accused remove labels from a number of items and move towards an exit from the store. Bryant testified he looked at the feed from a CCTV camera located about 15 m away from where he testified the accused had removed labels, but saw no images of the offender. By the time the request by the defence for CCTV feed from the store was made, the feed was no longer available, from that camera or others in the store that might have shown the accused.
The Full Court in Sherlock set aside the decision of a single judge of the Supreme Court of South Australia dismissing an appeal against a magistrate's decision to stay the prosecution. The Full Court remitted the matter for further hearing and determination by the Magistrates Court of South Australia. In the course of his judgment, Doyle CJ (Sulan J agreeing), referring to counsel for the respondent Mr Sherlock, Mr Edwardson, and to Bryant, said this:
Next, it has to be borne in mind that the most that can be said about the missing film is that it might have recorded something relevant to the case. There is no way of knowing if it did. If the film recorded something relevant, the material might have assisted the prosecution, it might have assisted the defence, or it might have been neutral. That is the most that can be said.
Mr Edwardson rightly made the point that Mr Bryant's reliability, and in particular his evidence that Mr Sherlock removed the ultra labels, is crucial to the prosecution case. The missing film is the one piece of objective or independent evidentiary material that might have enabled the defence to challenge Mr Bryant's reliability.
But as against that it must be remembered that all one can say is that the missing film might have assisted either party.
Bearing that last point in mind, and remembering that courts must routinely decide cases on less than all of the potentially relevant evidence, it is not apparent to me how it can be said that the trial will be unfair because of the circumstance that there is a possibility that evidentiary material favourable to a defence case was not obtained and retained [81] ‑ [84].
I consider the observations in Sherlock just quoted are applicable in this case. The appellant's case depends upon what he says is evidence RC would have given had he been called and cross-examined by the appellant. However, it has not been made apparent to me that RC would necessarily have given that evidence. The most that the appellant can show is that, if (as seems reasonably likely) RC had given evidence in accordance with RC's witness statement, there was a significant possibility the appellant would have discredited RC's evidence to that effect. If the appellant had succeeded in doing that, there was a possibility, the strength of which is in my view impossible to assess, that the appellant would have elicited evidence from RC that RC saw SL in the front yard of the appellant's house from which the appellant was seeking to remove SL, or that the Ls had fabricated evidence with RC. It is impossible to assess the strength of the possibility of RC giving such evidence because it was not suggested that he had in any setting previously given such evidence or said such things. He might not have given any such evidence. Thus, the appellant might have adhered to the account in his witness statement, as by seeking to explain it consistently with the matters the appellant put against him.
That is, in the terms used in Sherlock [81], RC's evidence might have assisted the defence (as where the appellant elicited the evidence sought from RC, and it was believed), it might have been neutral (as when none of RC's evidence was believed), or it might have assisted the prosecution (as where the appellant did not succeed in discrediting RC's evidence in accordance with his witness statement).
Conclusion
It follows from these reasons that I would not uphold the ground of appeal. Although I would grant leave to appeal, I would dismiss the appeal.
I will hear from the parties as to the orders I should make.
Annexure: reasons for rejecting application to admit evidence and amend grounds of appeal
[These reasons are edited from the transcript of the hearing on 11 July 2011.]
There does remain the matter that the appellant Mr Sargon raised with me concerning what he says was an exchange with [SL] on 10 and 11 April 2009 a couple of days, two to three days, before the incident in question in which [SL] he said accosted him. Mr Sargon had complained about this to police but he did not have any documentary evidence with respect to it. If I have understood what Mr Sargon is saying, Mr Sargon would wish to put that evidence before me as evidence which I could properly receive even though it was available to Mr Sargon at the time of the trial before Magistrate Hogan. He wished to put that evidence to me to show to me that the convictions were unsafe.
I presume, although Mr Sargon has not gone in any detail into this evidence, that it would have shown an exchange between [SL] making more plausible the account Mr Sargon gave of the exchange between SL ‑ and by 'exchange' I include also physical exchanges as well as verbal ones ‑ on 13 April 2009.
I have thought carefully about this. It seems to me that the test I must apply is that which would apply to the question whether leave to appeal might be given in respect of such evidence, and no competent answer can be returned to that without the evidence being before me; and secondly, whether evidence of that kind could be properly received in the appeal where it was available to Mr Sargon at the time of the trial but not produced.
To the extent I have understood the authority on the adducing of new evidence in an appeal, where the evidence was available to the appellant at the time of the trial, as opposed to evidence which has only since the trial become available or been discovered, the courts are warier or more reluctant to accept such evidence. Mr Sargon's explanation of why he did not put the evidence to the magistrate was apparently because he did not have written corroboration of his complaint to the police despite a Freedom of Information Act 1992 (WA) request in respect of that complaint.
Of itself, I should say that would not have prevented the evidence being put forward; but Mr Sargon was self represented both at the trial and in the appeal before me and most particularly at the trial. As I have understood the authorities, particularly De la Espriella‑Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291, it is relevant to take account of the difficulties under which a party might have been labouring at trial in relation to the evidence in question.
At the same time I must take account of the fact that the contribution this evidence could make would, it seems to me, be relatively slight. It was not in doubt that there were difficult and very strained relations between [SL] in particular, and the other Ls as well, on the one hand, and Mr Sargon, on the other; and the magistrate accepted that.
There were indeed in the proceedings before the magistrate indications of past, if I may put it this way, bad blood between the parties. Whether or not on a previous occasion [SL] had acted inappropriately towards Mr Sargon has only very limited probative value, it seems to me, with respect to the way in which he might or might not have behaved on 13 April 2009.
Assuming the evidence is of a particularly strong kind, it still does not seem to me that it is evidence of a kind, having regard to its availability at the time of the trial after allowing for the self-represented character of Mr Sargon, that on an appeal this court would admit.
It follows from that that I will not give leave to allow the amendment to the grounds of appeal to let in this additional ground.
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